In re National Gender and Equality Commission (Reference 1 of 2013)
The bottom line
#Supreme Court can give advisory opinions but won't if issues are already in lower courts.
What this practically means
#The National Gender and Equality Commission asked the Supreme Court for an advisory opinion on representation of special interests in county assemblies. The Court said it has the power to give such opinions, but it will not do so when the same issues are already being handled by lower courts. The Commission should have appealed through the normal court system instead of asking for an advisory opinion. The case was therefore struck out.
Executive summary
#Key legal issues
#Whether the Supreme Court has jurisdiction to render an advisory opinion under Article 163(6) of the Constitution.
The Court has jurisdiction under Article 163(6) to issue an advisory opinion at the request of a state organ on a matter concerning county government.
The Court confirmed that the applicant, a state organ, had locus standi, and the subject-matter concerned county government, thus satisfying the two paramount considerations for jurisdiction. However, jurisdiction is discretionary and not all cases qualify for an advisory opinion.
Whether the Court should exercise its discretion to render an advisory opinion where the issues have been substantially determined by lower courts.
The Court declined to exercise its discretion because the issues had been litigated in the High Court and Court of Appeal, and the applicant should have pursued review or appeal rather than an advisory opinion.
The Court noted that the applicant had withdrawn some issues because they had been determined in lower courts, and the remaining issues were also covered by those decisions. The Court held that allowing the reference would circumvent the normal appellate hierarchy and usurp the High Court's primary jurisdiction to interpret the Constitution.
Legal principles established
#- The Supreme Court has jurisdiction to give advisory opinions on county government matters when requested by a state organ.
- The Court's advisory opinion power is discretionary, not automatic.
- Parties cannot use advisory opinions to bypass the normal appeal process in lower courts.
- It is good practice to first seek the Attorney-General's advice before asking the Supreme Court for an advisory opinion.
- The High Court has primary jurisdiction to interpret the Constitution, and the Supreme Court will not usurp that role.
- If issues have already been decided by lower courts, the Supreme Court will decline to give an advisory opinion.
Court orders
#- 1.The preliminary objection by the IEBC is upheld in its entirety.
- 2.The reference is struck out.
- 3.Each party to bear its own costs.
- Jurisdiction invoked
- Article 163(6) of the Constitution
Key timeline
#Practical implications
#Use advisory opinions strategically
When advising state organs, ensure the matter is not already pending or decided in lower courts. If it is, advise clients to pursue appeal or review instead. Also recommend seeking the Attorney-General's opinion first as a best practice, though not mandatory.
Understand court hierarchy limits
If your business is involved in a constitutional dispute with a county government, know that the Supreme Court will not give a shortcut advisory opinion if the case is already in lower courts. You must follow the normal appeal route from the High Court to the Court of Appeal to the Supreme Court.
Follow the right court process
If you have a legal issue about county government or representation, start at the High Court. You cannot skip levels by asking the Supreme Court for an advisory opinion. The Court only gives such opinions in special cases where no other court has dealt with the matter.
Frequently asked questions
#Can the Supreme Court of Kenya give advisory opinions?+
Yes, under Article 163(6) of the Constitution, the Supreme Court can give advisory opinions on county government matters when requested by a state organ. But the Court decides whether to accept each request.
What happens if my case is already in a lower court in Kenya?+
The Supreme Court will likely refuse to give an advisory opinion if your issues are already being handled by the High Court or Court of Appeal. You must follow the normal appeal process instead.
Do I need to ask the Attorney-General before going to the Supreme Court in Kenya?+
It is not legally required, but the Supreme Court says it is good practice to first seek the Attorney-General's advice before asking for an advisory opinion.
What is the difference between an advisory opinion and an appeal in Kenya?+
An advisory opinion is a request for the Court's guidance on a legal question, not a dispute between parties. An appeal challenges a lower court's decision. The Supreme Court prefers appeals over advisory opinions when a case has already been decided.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kalinga v Independent Electoral & Boundaries Commission & 10 others; Orange Democratic Movement & 7 others (Interested Parties) (Election Petition E002 of 2022) [2023] KEMC 12 (KLR)[2023] KEMC 12 (KLR)14 Mar 2023
- Kalinga v Independent Electoral & Boundaries Commission & 10 others; Orange Democratic Movement & 7 others (Interested Parties) (Election Petition E002 of 2022) [2023] KEMC 12 (KLR)[2023] KEMC 12 (KLR)14 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "In re National Gender and Equality Commission (Reference 1 of 2013)", Case Analysis (2014). Reference 1 of 2013. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/42/eng@2014-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.